Ramirez v Ramirez

Federal Court of Australia|2009-09-18|Before: Cowdroy J

BACKGROUND 1 By Application for Extension of Time to File and Serve Notice of Appeal dated 14 August 2009 (the 'Application') the applicant seeks leave to file an appeal against a sequestration order made against him on 7 July 2009 by Federal Magistrate Lloyd-Jones. The applicant has sworn an affidavit in support of the Application which was also filed on 14 August 2009. 2 By orders entered on 16 April 2007 in the Supreme Court of New South Wales, Equity Division (proceedings 3850 of 2001) ('the Supreme Court orders') the applicant was ordered to transfer monies from accounts held in the National Australia Bank and St George Bank to Carlos Enrique Ramirez, who is the applicant's brother and respondent to these proceedings. The Supreme Court proceedings concerned a dispute involving the estate of the applicant's late mother, Susana Ramirez who died on 18 December 1998 and the respondent. It is the failure of the applicant to comply with the orders of the Supreme Court which have resulted in the bankruptcy proceedings.

THE APPLICATION 3 The Application has clearly been prepared by the applicant himself. The affidavit filed in support of the Application, sworn by the applicant, states: The reason why not apply on time my application appeal.

Becouse [sic] I was complete ignorant of the procedures.

4 The Draft Notice of Appeal attached to the affidavit provides as grounds of appeal: 1. I annul bankruptcy

Paying only to Carlos Enrique Ramirez $25,119.85

Conspiracy from the legal representants [sic] of the respondent

5 Attached to the affidavit in support are documents which were part of the evidence provided to the Federal Magistrates Court. It includes a history of the litigation supplied by the applicant together with bank statements in respect of accounts he holds with the National Australia Bank and St George Bank. 6 The appellant appeared before the Court unrepresented but with the assistance of an interpreter. At the outset of the Application the applicant inquired whether the respondent was in Court. Since no application for the issue of a subpoena had been received, the respondent did not appear, other than by his counsel. 7 The applicant then informed the Court that he had not seen the respondent for 11 years. The applicant claimed that there was a conspiracy between the respondent and at least three solicitors, one of whom who had previously been retained to act for the applicant. The applicant tendered a letter addressed to the Court in which he repeated such allegations and requested that the respondent appear in Court. The applicant informed the Court that he had expended approximately $15,000 in lawyers' fees and that he wished to be granted the benefit of pro bono legal assistance pursuant to O 80 of the Federal Court Rules ('the Rules'). The Court treats such request as one referrable to O 80 r 4(1) which provides: The Court or a Judge may, if it is in the interests of the administration of justice, refer a litigant to the Registrar for referral to a legal practitioner on the Pro Bono Panel for legal assistance in relation to a proceeding before the Court.

Compliance with O 52 r 15(3)(c) 8 Order 52 rule 15(1)(a) of the Rules requires that a Notice of Appeal is to be filed and served within 21 days after the date when the judgment appealed from was pronounced (see subparagraph (i)). 9 Order 52 rule 15(2) of the Rules states: Notwithstanding anything in the preceding subrule, the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal.

10 Accordingly the applicant must establish that there are 'special reasons' which would justify the court granting leave. 11 The requirements for an application for a grant of leave are set out in O 52 r 15(3)(c) of the Rules. Such rule provides that the application must: (c) be accompanied by an affidavit setting out:

12 The present application does not comply with the requirements of O 52 r 15(3)(c) of the Rules. There is no description of the factual and legal issues in dispute, nor are reasons stated why leave should be given. Nevertheless, the Court will consider the Application as if the requirements of the Rules had been met.

Explanation for delay 13 In Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348 Wilcox J at 348-349 set out the requirements necessary for the Court to consider an application for leave to appeal. Firstly, it is necessary that there be 'an acceptable explanation of the delay'. 14 The applicant informed the Court that he had been told, when the sequestration order was made against him on 7 July 2009, that he had 21 days in which to appeal. However, he said he was unable to obtain legal assistance to lodge the appeal within the requisite period. Despite such assertion, the Court notes that the applicant was able to apply to the Federal Magistrates Court to annul his bankruptcy pursuant to s 153B of the Bankruptcy Act 1966 (Cth) during that 21 day period. That application was dismissed summarily on 28 July 2009. Although the applicant's explanation is barely adequate, the Court observes that the delay in filing this application is not extensive and that there is no evidence from the respondent that he would be prejudiced by any delay. Therefore, the Court would consider the requirement met.

Merits of proposed appeal 15 It is also necessary to show that there is merit in the proposed appeal in that there is a bona fide issue for determination. That is, that the applicant at least has a claim which is arguable on the merits: see Hunter Valleyat 349. In Jeffers v R (1993) 112 ALR 85 at 86 the High Court of Australia, considering a criminal matter, observed as follows: However, should the appellant be unable to demonstrate any prospect of success in the appeal which he seeks to prosecute he would, for that reason, not be entitled to an extension of time, despite the other circumstances.

16 An observation to similar effect was made in Parker v The Queen [2002] FCAFC 133 at [6]. In Howard v Australian Electoral Commission [2000] FCA 1767 the Court considered an Application for Extension of Time to File and Serve a Notice of Appeal. At [5] Branson J said: The Full Court gave consideration to the matters necessary to establish the existence of special reasons justifying the grant of leave to appeal out of time in Jess v Scott (1986) 12 FCR 187. At page 195 the Court said:

"What is needed to justify an extension of time is indicated in rule 15(2) by the words 'for special reasons'. It is that there be shown a special reason why the appeal should be permitted to proceed, though filed after the expiry of twenty-one days. In that context, the expression 'special reasons' is intended to distinguish the case from the usual course according to which the time is twenty-one days. But it may be so distinguished (not necessarily will, for the rule gives a discretion) wherever the Court sees a ground which does justify departure from the general rule in the particular case. Such a ground is a special reason because it takes the case out of the ordinary. We do not think the use of the expression 'for special reasons' implies something narrower than this."

17 Her Honour continued at [7]: However, even where special reasons can be identified, the Court has a discretion to grant or refuse to grant the extension of time sought. Factors to be taken into account in the exercise of the discretion include the importance of the question sought to be raised by the proposed appeal, the bona fides of the proposed appeal and the prima facie strength of the proposed ground of appeal (Jess v Scott at 188).

18 The applicant repeatedly stated that there was a conspiracy that he wished to have investigated involving his former solicitors and the respondent's solicitors. He alleged that because of the conspiracy he had not seen the respondent for 11 years; that he did not know if the respondent was still alive; and that if he could see the respondent he would be able to resolve the dispute. The applicant also stated his desire to protect his house which would be lost if the bankruptcy continued. 19 The Court observes that the applicant's assertions arise out of the dispute litigated in the Supreme Court. The applicant has not appealed such orders. 20 The draft grounds of appeal raise only one legal issue, namely 'conspiracy from the legal representants [sic] of the respondent'. Such claim is inadequate to found any legal basis for challenge. It suggests that the applicant wishes to raise a cross-claim or set-off based upon a conspiracy by the lawyers to prevent the applicant having direct communication with the respondent. However, the applicant had the opportunity, following service of the Bankruptcy Notice, to satisfy the Court that he had a set-off or cross-demand equal to the amount of the judgment debt. The Court is unaware whether he attempted to do so. Even if the applicant did so, it was necessary to prove that his claim could succeed. In Ebert v The Union Trustee Company of Australia Limited (1960) 104 CLR 346 at 350 the High Court observed: Section 52 (j) makes it necessary that a debtor served with a bankruptcy notice, if he does not comply with its requirements, should satisfy the Court of Bankruptcy that he has a counter-claim, set-off or cross demand which equals or exceeds the amount of the judgment debt. The debtor clearly must satisfy the Court that there exists in him a counter-claim, set-off or cross demand. "Cross demand" is the word relied upon here. The appellant cannot satisfy the Court that a cross demand exists by showing no more than that she propounds one and states how she suggests that she can make it out. In Re Duncan; Ex parte Modlin (1917) 17 SR (NSW) 152; 34 WN 49 Street J. said that the debtor need not satisfy the Court that there are reasonable grounds for believing that he will establish his cross action, but only that he has a bona fide claim which he is fairly entitled to litigate. This perhaps is expressed too favourably to the debtor. In Re A Debtor (1958) 1 Ch 81 Roxburgh J. said: "But not every demand will suffice. A demand made in bad faith would not be good enough. The debtor must satisfy the Court that he has a genuine demand. . . . But in my opinion a demand must be more than bona fide: the Court must be satisfied that it has a reasonable probability of success" (1958) 1 Ch, at p 99 . Perhaps the standard may be expressed by saying that the debtor must show that he has a prima facie case, even if then and there he does not adduce the admissible evidence which would make out a prima facie case before a court trying the issues that are involved in his counter-claim, set-off or cross demand.

21 No particulars have been provided and the claim could only be described as a vague assertion. The Court does not believe that any merit exists in the claim and rejects it.

CONCLUSION 22 The Court is unable to be satisfied that the applicant has a prima facie case or that there are any 'special reasons' to justify setting aside the sequestration order. The Court accordingly refuses the request for legal representation under O 80 r 4(1) of the Rules, since it is satisfied that it is not required for the administration of justice to make such order. The Court dismisses the application with costs. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate: Dated: 18 September 2009 Counsel for the Applicant: The applicant appeared in person

Solicitor for the Respondent: Sydney Business Lawyers

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